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Writ Petition No. 314 of 1956, decided on 11th December 1957.
‑Rules framed under an enact ment have same force as provisions of enactment.
‑Rights conferred by Constitution may be abridged, whittled down or abrogated by Constitution.
,
Art. 225 (3)‑Bye‑elections to interim Legislatures held under Rules framed by President‑Not challengeable by writ petition‑Constitution of Pakistan, Arts., 146, 170‑Art. 170 subject to Art. 146 West Pakistan Provincial Legisla tive Assembly (Filling of Casual Vacancies) Rules, 1956, Rule 18.
Under the Constitutional arrangements made under clause (3j of Article 225 of the Constitution, bye‑elections can be held to fill casual vacancies occurring in W esc Pakistan Legislative Assembly and if a bye‑election is held doubts or disputes arising out of it can be raised only by means of an election petition. No bye -election can be questioned in any Court of law. These constitu tional provisions made under Article 225 (3) of the Constitution operate by way of exception to Article 170 of the Constitution and remove elections from the purview of Article 170. Power conferred on the High Court under Article 170 of the Constitution has been abridged to that extent by the provisions made under Article 225 (3). Article 170 is subject to Article 146. That Article is also subject to any provision made under Article 225 (3 ).
The special provision under Article 225 (3) overrides the general provision of Article 170. If, however, no election has taken place at all, writ jurisdiction of the High Court would be invokable. But where an election has taken place, but in conduct ing it irregularities have been committed challenge can be offered to it by means of election petition only.
Amar Chand v. Prasanna 25 C W N 9 ref.
N. P. Ponnuswami v. Returning Officer Namudkal A I R 1952 S C 64 ; Ramkrishna v. Daosing A I R 1953 Nag. 357 ; Katesan v. S. M. Patri A I R 1954 Orrisa p. 87 ; Sadiq Wahab v. Iftikhar Husain P L D 1956 Kar. 371 and Muhammad Akbar v. Dr. Khan Sahib, Chief Minister of W. P. P L D 1957 Kar. 387 distinguished and dissented from.
Sadiq Wahab v. Syed Iftikhar Hussain and others P L D 1956 Kar. 371 examined.
Muhammad Sayeed and four others v. Election Petition Tribunal of West Pakistan ahd others P L D 1957 S C (Pak.) 91 and Raj Krushma Bose v. Binod Kanungo and others A I R 1954 S C 202 distinguished.
‑Special provision overrides the general.
‑
Whether Gazette Notification setting out‑names of persons elected in an election sufficient answer to writ ‑Constitution of Pakistan, Art. 170.
‑If a writ of quo‑warranto is issued, it would be sufficient answer to the writ if the respondents produce the Gazette Notification in which their names have been notified as elected members of the Assembly.
‑I am sceptical about accepting the proposition . . . . . . that even if a Writ of Quo‑warranto is issued, it would be sufficient answer to the writ if the respondents produce the Gazette Notification in which their names have been notified as elected members of the Assembly. I know of no rule relating to elections giving such a sanctity and finality to the Gazette Notification.
‑History‑Constitution of Pakistan, Art. I (2) (c).
Validity may be questioned by any person who may be neither a voter nor a candidate.
Art. 146‑Applies to permanent legislatures under the Constitution.
Dr. Abdur Rahim for Petitioner.
Ch. Muhammad Ali, A. A. G. for Respondents 1 to 3.
Sajjad Ahmad and Kh. Abdur Rashid for Respondents 4, 7, 8 And 9 not served.
Sh. Bashir Ahmad for Respondent No. 5. Faiyaz Ali, Attorney‑General for the State.
Date of hearing: 3rd and 4th October 1957.
An application has been presented to this Court by Khan Ajun Khan Gadoon under Article 170 of the Constitution praying for a writ of quo‑warranto, certiorari or any other appropriate writ against the respondents. According to the applicant's averments the cause for the writs in prayer arose out of the bye‑elections which were held for filling six casual vacancies in the Provincial Legislature of West Pakistan from the tribal areas adjoining Hazara and Mardan Districts. These bye -elections took place on 4‑10‑1956.
In the Provincial Legislature of West Pakistan six seats were allotted to tribal areas adjoining Hazara and Mardan Districts under paragraph 4 (h) of the Second Schedule to the Establish ment of West Pakistan Act, 1955. Six persons were elected to the Provincial Legislature in accordance with the provisions of section 11 of that Act when that Act was in force and the country was not yet under the domain of the new Constitution. These elections were challenged by means of an election petition. The Election Tribunal which entertained the challenge set aside those elections and ordered fresh elections in their place. When time for holding fresh bye‑elections came the Constitution of Pakistan was in force and the Establishment of West Pakistan Act, 1955 had gone out of existence. But under the arrangements made in the Constitution (Article 225) for the transitional period the Provincial Legislatures functioning immediately before the Consti tution day were required to‑perform the function of the Provin cial Legislatures after the Constitution Day. As casual vacancies were to occur in the Provincial Legislatures a clause was inserted in Article 225 of the Transitional Provisions, as clause 3, which empowered the President to make rules for filling casual vacancies in the Provincial Legislatures. In the exercise of those powers Rules were made by the President for that purpose on 10‑5‑1956 which were published in the Gazette of Pakistan as "West Pakistan Provincial Assembly (Filling of Casual Vacancies) Rules, 1956". To those rules a Schedule was appended and in para graph 4 (h) of Part C of the Schedule six seats were shown to have been allotted to Tribal Areas adjoining Hazara and Mardan District, In relation to casual vacancies occurring in respect of the seats allotted in the Schedule Rules 3 and 5 said:-
"(3) When a casual vacancy occurs a bye‑election shall be held to fill the vacancy and the Governor shall by Public Noti fication fix the date, place and time for holding the bye‑election,
(5) Where the seat of any member for which provision is made in the Schedule falls vacant a person shall be elected thereto and at such election only those persons shall be entitled to vote who were entitled to elect a member to the Interim Legislative Assembly for that seat".
The Governor in exercise of the power conferred by Rule 3 fixed 4th of October 1956 as the date on which by‑elections relat ing to the six seats assigned to Tribal Areas of Hazara and Mardan Districts were to be held and bye‑elections were held on that day at which six Respondents Nos. 4 to 9, were returned as elected. It is these bye‑elections which the petitioner has by this petition challenged on the grounds mentioned in paragraphs 5 to 13 of the petition.
The main contention of the petitioner is that these bye‑elec tions were not conducted in accordance with the Rules framed for the purpose and Respondents Nos. 4 to 9, have not been validly elected as Members of the Provincial Legislature of West Pakistan. It has been requested that they should be restrained from functioning as Members of ;that Legislature. A request has also been made for issuing a Writ of certiorari against Respondents Nos. 1 to 3 for the production of the record concerning these bye‑elections with a view to quashing the bye‑elections. There is also a prayer for a direction to Government to hold fresh bye‑elections in accordance with law.
On behalf of the Respondents a preliminary objection has been raised that in respect of matters relating to elections a peti tion for the issuance of writs under Article 170 of the Constitution Is' not competent. It has been contended that the right to claim writs has been conferred by the Constitution under Article 170 and if any other provision of the Constitution has in respect of any matter curtailed or withdrawn that right, no writ in respect of that matter can be issued. Reliance has been placed on certain provisions of Law to show that matters relating to elections to the Provincial Legislatures have been placed outside the pale of Article 170 of the Constitution. On examination of all the legal provisions which have been made after the promulgation of .the new Constitution . in respect of challenge to bye‑elections for filling casual vacancies in the Provin cial Legislature of West Pakistan constitutional position which obtained on the relevant day is as follows:‑
The Interim Legislature for the Province of West Pakistan was constituted in accordance with the provisions of section 11 of the Establishment of West Pakistan Act, 1955, and section 12 of that Act made provisions for challenging elections held under section I1 of the Act. That section said‑
"12, (1) If any doubt or dispute arises as to whether a person has or has not been validly elected to the Legislative Assembly constituted under section 11 of this Act, it shall be raised by a petition to the Governor of West Pakistan . . . . . ".
The Establishment of West Pakistan Act, 1955, was repealed by Article 221 of the Constitution but as Interim Provincial Legislative Assembly of West Pakistan was allowed, under Article 225 (2) of the Constitution, to function as Provincial Legislative Assembly and as casual vacancies were expected in that Assembly provision was made under clause (3) of that Article for filling casual vacancies. The President was empowered to frame Rules for that purpose and Rules were framed by the President which were published on 10th May, 1956 as "West Pakistan Pro vincial Assembly Filling of (Casual Vacancies) Rules, 1956". One of those (Rule 6) brought again into life the provisions of the Establishment of West Pakistan Act, 1955. That Rule says:‑
"6. The provisions of the Establishment of West Pakistan Act of 1955 and rules made thereunder shall apply to bye elections under these Rules as they applied to elections to the Interim Legislature held thereunder".
In that Act provisions relating to elections were enshrined ‑in sections I1 and 12. By the force of Rule 6 sections 11 and 12 of that Act came into operation in relation to bye‑elections to be held under Article 225 (3) of the Constitution. If we refer to section 12 we find that it says in subsection (1)‑
"(1) If any doubt or dispute arises as to whether a person has or has not been validly elected to the Legislative Assembly constituted under section 11 of this Act, it shall be raised by a petition to the Governor of West Pakistan".
After that, subsection (4) o:' that section says‑
"(4) For the purposes of investigation and decision of doubts and disputes the provisions of the Government of India (Pro vincial Elections) Corrupt Practices and. Election Petitions) Order, 1936 and Part E of the Punjab Legislative Electoral Rules, 1950 relating to corrupt practices and the final decisions of doubts and dispute as to the validity of an election shall apply with such modifications as the context may require".
Later on, subsection (6) of section 12 says‑
"(6) The validity of an election under section 11 of this Act shall not be questioned in any Court".
When we look at the Government of India Order of 1936 which has been brought into force by the aforesaid arrangement we find that paragraph 2 of Part III of that Order says‑
"2. No election shall be called in question except by an elec tion petition presented in accordance with the provisions of this part of this Order"
We find that by the force of Rule 6 of the Rules framed by the President under Article 225 (3) of the Constitution subsec tion (1) and subsection (6) of section 12, of the Establishment of West Pakistan Act, 1955 and paragraph 2 of the Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order, 1936 became part of clause (3) of Article 225 of the Constitution. It is an accepted principle of law that rules framed under an enactment acquire the same force which other provisions of the enactment possess. In this case rules framed by the President under Article 225 (3) of the Constitution have acquired the force of Constitutional provisions. Those Rules have made subsections (1) and (6) of the Establishment of West Pakistan Act, 1955 and paragraph 2 of the Order of 1936 a part of Article 225 (3) of the Constitution. This proposition receives support from Zain Noorani v. Secretary of National Assembly of Pakistan (P L D 1957 S C (Pak.) 46). But this is not all.
The West Pakistan Provincial Legislative Assembly (Filling of Casual Vacancies) Rules 1956 were further amended on 31‑7‑1957 and the amendments were published in Gazette Extra ordinary No. F. 2 (4) 57 Ref., dated the 31st July, 1957. After Rule 9, Rules 10 to 18 were added. Rules 17 and 18 of the Rules which are relevant say :‑
"17. For the investigation and decision of doubts and disputes raised in an election petition, the provisions of Part II of the Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order 1936 as amended by the Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order (Punjab Amendment) .act, 1954 (Punjab Act VI of 1955), and of Part E of the Punjab Legislative Assembly Electoral Rules, 1950, shall, in so far as they are not inconsistent with these Rules apply with such modifications as the context may require".
"18. The validity of a bye‑election shall not be called in question except in the manner provided by these Rules".
The result ensuing from all the aforesaid arrangements made under the Rules framed under clause (3) of Article 225 of the Constitution is that bye‑elections held under that cause become challengeable through an election petition only and not otherwise. Resort to a Court. including the High Court is specifically barred whatever may be the method of access to that Court.
The source of this bar lies, as has been shown above, in Article 225 (3) of the Constitution. This Article stands in the transitional and temporary provisions of the Constitution which are special provisions relating to transitional period and being special provisions relating to transitional period they operate by way of exception to the general provisions lying in the main part of the Constitution. For this reason provisions of the Constitu tion which form part of Article 225 (3) override the general provisions contained in Article 170 and constitute an exception to it.
The proposition that a particular or a special provision in an Act overrides the general provisions of the Act and operates by way of exception is too well known to need any elaborate discussion. Halsbury's Laws of England contains in many places in Volume 27 (1913 Edition) statements to this effect. At page 136, it says‑
"A particular enactment wherever found must be construed strictly as against general provision".
At another place in the same volume it says :‑
"Special provisions as to particular properties following on general provisions contained in the same or an incorporated Statute are to be regarded as exceptions out of the general provisions". (pages 137‑138).
We find the same view expressed in the following language at pages 168 and 169.
"The general law of the country is not altered by special legislation made without reference to it, though a Statute passed for a particular purpose must so far as that purpose extends override general enactments. A general Statute may be repealed pro canto by a special Statute, an exception being made out of or a condition being imposed upon its general provisions".
"Where in the same or a subsequent Statute a particular enactment is followed by a general enactment and the later taken in its most comprehensive sense, would overrule the former the particular enactment is operative, and the general enactment is taken to affect only those other parts of the particular enactment to which it may properly apply".
To the same effect is the discussion of this subject in Maxwell on "Interpretation of Law" under the maxim Generalis special bus non derogant. The rule which applies to two separate Statutes one general and the other special applies with greater force to two separate provisions a general and a special in the same Statute. The same view has been expressed in a Calcutta case Amar Chand v. Prasamna cited as (25 C W N 9).
In this connection reference to the position obtainable under f the Indian Constitution is pertinent. The Supreme Court and High Courts in India are unanimous in the view that elections can be challenged before an Election Tribunal only. The writ jurisdiction of the High Court is not invokable for this purpose. A few of those authorities are A I R 1952 S C 64 ; A I R 1953 Pat. 290 (sic); A I R 1953 Nag. 357 and A I R 1954 Orrisa 87. Those authorities flow from the provision contained in Article 329 (b) of the Constitution of India. That provision is similar to. the corresponding provision in our Constitution contained in Article 146. In the case of India it is Article 329 (h) of the Indian Constitution which excludes, in respect of matters relating to election, the writ jurisdiction of the High Court which they possess under Article 226. In our case Article 146 will achieve that result in relation to elections which will be held for the permanent legislatures. But until that Article comes into application, elections to temporary Provincial Legislatures are to be governed by the provisions made under Article 225 (3) of the Constitution and that result is achievable by the rules framed under that Article Those rules have subjoined to Article 225 (3) the provisions of subsections (1) and (6) of section 12 of the Establishment of West Pakistan Act, 1955, the provisions of para graph 2 of the Government of India Order of 1936 and Rule 18. All those provisions prescribe the special mode by which challenge to elections should be offered and by their effect they bar the jurisdiction of all Courts including High Court.
If a brief discussion of the Indian position be tolerated it will be of advantage in the appreciation of our position because the provisions of the Constitution by which writ jurisdiction of the High Courts is barred in relation to elections to the Legislature are almost identical in both the Constitutions. In the case of India the bar emanates from the provisions of Article 329 (b) which runs as following ‑
"329. Notwithstanding anything in this Constitution . . . . . .
(b) no election to either House of Parliament or to the house of either house of Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided by or under any law made by the appropriate Legislature".
Relying on this provision in the Constitution the Indian Supreme Court and High Courts have held in clear language that their writ jurisdiction does not extend to matters relating to elections to the Legislatures. Disputes arising out of those elections are cognizable by an Election Tribunal only which is a special forum which the Parliament has created for that purpose. (fee A I R 1952 S C 64 ; A I R 1953 Pat. 290 ; A I R 1953 Nag. 357 and A I R 1954 Orrisa 87). In respect of disputes relating to elections to Municipal Corporations, Municipal Committees, Town Committees and Local and District Boards the High Court can exercise writ jurisdiction because in those cases the bar if any has been imposed by the Acts of Parliament or by Acts of State Legislatures and not by any provision of the Constitution. Elections to the Legislatures alone are protected by the Constitution from attacks in Courts. Writ. jurisdiction of the High Court extends to elections to the aforesaid bodies, because in the Constitution there is no provision in abridgment of writ jurisdiction of the High Court in respect of election to those bodies. There is a bar in the case of election to the Legislatures because the bar springs from the Constitution itself. In the case of India, it emerges from Article 329 (b) and in our case from Article 146. It is an undisputed rule of law that rights conferred by the Constitution can be abridged, whittled down or abrogated, by the Constitution. If it is in the competence of the Constitution to confer a right it is obviously also within its competence to prescribe conditions under which that right is to be) exercised and conditions under which its benefits will not bell available.
According to our Constitution elections to Federal ands State Legislatures are not challengeable in any Court at all. (Article 146). The right conferred by the Constitution on the High Court under Article 170 has been withdrawn in relation to these elections. But Article 146 will apply to elections which will be held under the Representation of Peoples Act, 1957. Elections held to temporary Provincial Legislatures under Article 225 (3),6 of the Constitution will be challengeable in the manner provided by the Rules made under that Article and if there is anything in those Rules which excludes the jurisdiction of the High Court that rule will take effect and will serve the same purpose for the transitional period as Article 146 will serve in relations to elections to permanent Legislatures.
Our attention has been drawn to two rulings of the Karachi Bench of the High Court where the learned Judges have held that the writ jurisdiction of the High Court extends to election to the Legislatures as well. The first ruling on the subject is reported as Sadiq Wahab v. Iftikhar Hussain (P L D 1956 Kar. 371). In that case election to fill a seat in the interim Legislature of West Pakistan under section 11 of ‑the Establishment of West Pakistan Act 1955 was challenged. In that case the petition was rejected on the ground that redress was available to the petitioner by way of election petition and it was said that a petition should have been presented before the Election Tribunal. But it was stated with out giving reasons that subsection (6) of section 12 of the Establishment of West Pakistan Act, 1955 did not constitute a bar in exclusion of the writ jurisdiction of the High Court. The learned Judges expressed themselves on this subject in the following language.
"As regards the second contention, we agree with Mr. Suhrawardi that subsection (6) of section 12 of the Act is not a bar to our writ jurisdiction. It is a jurisdiction conferred by the Constitution and it is the Constitution alone which can modify or restrict it. It cannot be taken away or limited by any Act of the Legislature".
The proposition that the writ jurisdiction which has been conferred by the Constitution cannot be restricted or abridged by an Act of the Legislature is undoubtedly above challenge. A jurisdiction conferred by the Constitution can be modified or restricted by the Constitution alone. But it appears that in that case it was not brought to the notice of the learned Judges that the Establishment of West Pakistan Act, 1955 was not an Act of the Legislature but was a constitutional document. It was an Act enacted by the Constituent Assembly. It amended the Government of India Act, 1935 and was a part of the Constitu tion. Its provisions had the force and effect of Constitutional provisions. If in section 12 (6) it said, in respect of elections held under section 11 of the Establishment of West Pakistan Act, 1955, that they will not be questioned in any Court but their validity will be tested by an Election Tribunal only, that special provision in that Act constituted an exception to section 223‑A of the Government of India Act, 1935.
The other case which bears on this subject is Muhammad Akbar v. Dr. Khan Sahib, Chief Minister of West Pakistan (P L D 1957 Kar. 387). That was a case in which under the Governor General's Order No. XII of 1955 a member was to be elected to the National Assembly by an electoral college consisting of the members of Shahi Jirga and the non‑official members of Quetta Municipality. It was found that persons who voted at that election as non‑official members of Quetta Municipality were not at the time of the election members of that Municipality but were utter strangers. The election was challenged by means of a writ petition. In defence it was urged that section 9 of the Constituent Assembly proceedings and Privileges Act, 1955 constituted a bar against the petition. Section 9 of that Act said that election disputes could be challenged through an election petition presented to the Speaker who was to constitute a Tribunal for the settlement of the dispute. It further said that the report of the Tribunal was to be final and not questionable in any Court. The learned Judges who constituted the Bench said that section 9 of the Act did not operate as bar against the writ jurisdiction of the High Court. It only provided an alternative remedy by way of an election petition to the Speaker for constituting a Tribunal to investigate the challenge and to make a report. While dealing with this matter they said‑
"It is argued that under section 9 the petitioner had an equally appropriate and effective alternative remedy which was not availed of and in view of this the Court should decline to grant a writ of quo‑warranto. No, doubt the High Court would not ordinarily interfere where any remedy which is equally convenient is open to the petitioner but the existence of another remedy is not in every case a bar to the exercise of the powers of High Court under Article 170 and the Court can and should interfere if the circumstances of the case justify such interfer ence".
These observations of the learned Judges have no bearing on the case in hand because section 9 of the Constituent Assembly Proceedings and Privileges Act, 1955 does not anywhere say that election can be challenged by an election petition only and not otherwise. There is no provision in that Act parallel to Article 146 of the Constitution or (sic) [ss. 11 and 12(6) ] of the Establishment of West Pakistan Act, 1955 or paragraph 2 of the Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order 1936 or Rule 18 of the West Pakistan Provincial Assembly (Pilling of Casual Vacancies) Rules, 1956 which constitute a bar in recreation to elections held under Article 225 (3j of the Constitution. Section 9 of that Act provided a remedy for deciding doubts and disputes arising out of elections but did not forbid resort to any other remedy which under the Constitution was also available.
There are no d6ubf two passages in that judgment a discus sion of which is relevant. On page 392 of the judgment there is a statement to the effect that Article 146 of the Constitution is not applicable to the case that statement is correct. That Article was no doubt not applicable to the case which was before the learned' Judges. But that Article will no doubt be applicable to elections to permanent legislatures which will be held under the Constitution in accordance with the provisions of the Act of Parliament enacted for that purpose. An Act called the Representation of Peoples' Act, 1957 has now been enacted for that purpose and if elections are held in accordance with that Act and if that Act has Made provision for raising doubts and disputes relating to elections those doubts and disputes will have to be raised and decided in accordance with the provisions made in that Act. No other Court including the High Court will be competent to entertain any challenge to those elections. There is another statement in that judgment with which, with great respect to its learned authors, we are unable to agree. It is to the effect that even if Article 146 were applicable that could have been read subject to Article 170. In our view the position as disclosed by the study of the Constitutional provisions is otherwise. In fact Article 170 which is a general provision is subject to Article 146 which is a special provision lying in a special part of the constitution and relates to a special matter, namely raising of doubts and disputes relating to elections to the legislatures. We find that that argument has been founded on the analogy between Article 160 and Article 146. With great respect to our learned brothers we are of opinion that there is no analogy between Article 160 and Article 170. Article 160 confers powers on the Supreme Court to grant special leave to appeal from any judgment decree order or sentence of any Court or Tribunal. That Article makes the order of the Election Tribunal, appealable to the Supreme Court by special leave. But it does not subject elections td the writ jurisdiction. It is one thing to say that orders of the Election Tribunal are appealable to the Supreme Court by special leave and quite a different thing to say that the elections to the Legislature are not subject to the writ jurisdiction of the High Court. Article 170 confers a general power on the High Courts to issue appropriate writs to public authorities if they are found guilty of any violation of law in the conduct of the affairs entrusted to them for execution, if such violations are brought to the High Court's notice. As against that Article 146 says that if such violations relate to elections and have been committed by the authorities charged with the duty of conducting elections, those violations are assailable before the Election Tribunal only and not before any other Court or authority. Since Article 146 has been assigned in a special part of the Constitution ‑relating to Elections and as it protects elections only from attack in other places it obviously constitutes an exception to the general provisions contained in Article 170. The general powers conferred by the Constitution on the High Courts under Article 170 have been abridged by the Constitution itself by another of its provisions in Article 146. The abridgment is to this extent that the power has been curtailed in relation to elections to Legislatures. Attacks on those elections have been made assailable before the Election Tribunal created by the law made by the Parliament.
It is evident that the position of the .two cases discussed above is entirely different from the case in hand. Here elections have taken place on 4‑10‑1956 after the promulgation of the Constitution but before an Act of Parliament enacted for the purpose of Article 146 was in operation. Reference to that Article in any of those cases was inapt. The instant case is also one to which that Article is not applicable. Elections in this case have taken place under the provisions of the Article 225 (3) of the Constitution. For holding elections under that Article rules had to be framed by the President as no Act of Parliament was then in force. Temporary arrangements had to be made for filling vacancies in temporary‑ legislatures. Those rules served the two purposes which Article 146 has been designed to serve. They also prescribed, by making reference to Government of India Order of 1936 and other provisions mentioned in sub section (4) of section 12 of Establishment of West Pakistan Act 1955; the manner in which elections to temporary legislature are to be challenged and thereby rendered the same service which an Act of Parliament has to render under Article 146. These rules answer during the transitional period and in respect of temporary legislature the same purpose as Article 146 shall answer in relation to :permanent legislatures.
There are very strong reasons to withdraw all disputes and doubts relating to elections from the writ jurisdiction of the High Courts. The extension of that jurisdiction to election disputes world create impediments in the progress o elections and would prevent the Legislature from being constituted within the period prescribed for its constitution. In the case of election proceed ings which begin with the presentation of nomination paper to the Returning Officers and end with the publication of results in the Official Gazette several public authorities have to perform several official acts in accordance with the law of election i.e., the Repre sentation of Peoples Act, 1957 in our case. In the absence of any provision in the Constitution like one in Article 146 or like one made by the President under the Rules framed under Article 225 (3) in respect of temporary Legislatures every act of the officials, like rejection of nomination papers, appointment of presiding officers, issuing and rejection of ballot papers and counting of votes cast at the election. would be amenable to challenge in the High Court and it is obvious that such a challenge, if preferred will not allow the election to proceed in accordance with the time table prescribed for i:. It is mainly for this reason that election disputes have been placed outside the pale of the writ jurisdiction of the High Court.
There is one matter on which some comments appear to be necessary. We have said that Article 146 stands in the same relation to Article 170 in our Constitution as Article 329 (b) of the Indian Constitution stands in relation to Article 226 of that Constitution and as India has read Article 329 (b) as an exception to Article 226, we should also read Article 146 as exception to Article 170. In coming to the conclusion that Article 329 (b) of the Indian Constitution is an exception to Article 226 of that Constitution the Indian decisions took assistance from a phrase in Article 329 (b) which contains the words:
"Notwithstanding anything in the Constitution " with which the Article opens.
These words have been omitted from Article 146 of our Consti tution. But the omission does not belittle the effect of that Article at all. Article 146 stands in a special part of the Constitution relating to elections. We have already discussed above that provisions in a special part of the Constitution operate by way of exception to the general provisions. By virtue of their place in a special part of the Constitution they constitute exception to the provisions in other parts and do not require to be prefaced by an excluding phrase. Any provision in the special part by virtue of its place there operates as an exception to the general provisions without the insertion of any words bestowing the character of an exception upon it. Words constituting an ex cluding phrase would have been redundant in Article 146 of our Constitution. They are no doubt redundant in Article 329 (b) of the Indian Constitution. Those words appear to have been in serted by way of abundant caution.
For the reasons stated above we are clearly of opinion that under the Constitutional arrangements made under clause (3) of Article 225 of the Constitution to which reference have been made in the preceding paragraphs of this judgment bye‑elections can be held to fill casual vacancies occurring in West Pakistan Legislative Assembly and if a bye‑election is held doubts or disputes arising out of it can be raised only by means of an election petition. No bye‑election can be questioned in any Court of law. These con stitutional provisions made under Article 225(3', of the Constitution C operate by way of exception to Article 170 of the Constitution and remove elections from the purview of Article 170. Power conferred on the High Court under Article 170 of the Constitution has been abridged to that extent by the provisions made under Article 225 (3). We very much regret that we are not in agree ment with the learned authors of P L D 1957, Karachi page 387 in the view that Article 146 of the Constitution is subject to Article 170. On the other hand we are of opinion that Article 170 is subject to Article 146. That Article is also subject to any provisions made under Article 225 (3). But we are in full agreement with them in the view that if no election has taken P place at all, writ jurisdiction of the High Court would be invok able. But where an election has taken place, but in conducting it irregularities have been committed challenge can be offered to it by means of election petition only.
In the case in hand we are of opinion that an election has taken place. If in conducting the elections Rules framed by the 225 (3) have been violated then the case does not fall within category of cases in respect of which it may be said that no election in the eye of law has taken place. It falls within the class of cases in which election has taken place but rules have been broken in conducting the election. This is evident from the text of paragraphs 5 to 8 and 10 to 13 of the petition. The complaint in those paragraphs is that elections have not been conducted in accordance with the Rules. The irregulari ties specified in those paragraphs are irregularities of the character mentioned in paragraph 7 of part III of the Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Rules, 1936 on the commission of which election petitions are entertainable by the Election Tribunals.
Elections conducted in defiance of rules of law are challenge able before the Election Tribunal. Our jurisdiction under Article 170 does not extend to them. Even if a writ of quo warranto is issued, it would be sufficient answer to the writ if the Respondents produce the Gazette Notification in which their names have been notified as elected members of the Assembly. Under the rules relating to elections that would be a sufficient authority for Respondents Nos. 4 to 9 to hold office as members of the Assembly. If we travel beyond the Gazette Notification and explore the validity of the elections we shall be treading a forbidden field. We shall in that case be attempting to achieve by an indirect method what we cannot achieve by direct means. It is a well‑settled rule of law that a person cannot achieve by indirect means what he has been forbidden to achieve by direct means.
Power exercisable under Article 170 of the Constitution is a discretionary power. Even if we had any power to issue a writ in this matter we would have declined to exercise that power and would have directed the petitioner to take his dispute to the Election Tribunal. The case involves recording of large evidence and examination of long documents and for a work of that character Election Tribunal is the appropriate forum. There lies in election petition an alternative remedy and we would have directed the petitioner to pursue that course.
For the aforesaid reasons we are unable to entertain this petition under Article 170 of the Constitution and dismiss it. The petitioner will bear the costs of the Respondents. Pleader's fee Rs. 500.
‑I entirely concur with my learned brother Sheikh Abdul Hamid J. that the preliminary objection, that this Court should refuse to exercise its extraordinary powers conferred upon it by Article 170 of the Constitution of Islamic Republic of Pakistan, must prevail. I am, however, sceptical about accepting the proposition laid down by my learned brother that even if a Writ of quo warranto is issued, it would be sufficient answer to the writ if the respondents produce the Gazette Notification in which their names have been notified as elected members of the Assembly. I know of no rule relating to elections giving such a sanctity and finality to the Gazette Notification. Undoubtedly, the Court must take judicial notice of the official gazette notifying the accession to office, names, titles; functions, and signatures of the persons filling for the time being any public office in any part of Pakistan under section 57, subsection (7) of the Pakistan Evidence Act. But then all that it means is that to prove the facts mentioned in the Gazette it is not necessary to produce the evidence as is required in the: case of other documents. One may even go a step further and say that the presumption of correctness is attached to the facts mentioned in the Gazette, but then like every other presumption, this pre sumption can also be rebutted. Supposing, if no election has taken place at all, and a Government favourably inclined towards a certain person, notifies his name as caving been elected from a certain constituency, will it be said that although no election has taken place, yet as his name has been notified in the official Gazette, no further investigation can be made in the case
This with all respect to my learned brother is impossible to conceive.
The history of the Tribal Areas in pre‑partitioned India.is certainly very extraordinary. United India had eleven provinces, which had their own Legislative Assemblies and some of diem also the Legislative Councils. They were governed by the laws passed H by their respective Chambers of Legislatures as well as those enacted by the Central Legislature. There Were then numerous Princely States which were governed by their own laws and regulations and in relation to them the British Crown; through its officer, only exercised the powers of paramountcy. There was a third kind of area in United India known as "excluded" and " partially excluded area". No act of the Federal Legislature or of the Provincial Legislature was applicable to this area unless the Governor by publication of notification otherwise directed. The only portion of the province of the North‑West Frontier Province which was declared as excluded area,, was Upper Tanawal in the Hazara District.
There was then a fourth kind of area known as the "tribal area". The British Government exercised jurisdiction or author ity in respect of this area through its Governor‑General, who was to act purely in his discretion, as a result of certain treaties and agreements with the people living in this area. In actual fact, the Governor‑General or the Governor as his Agent, was an autocrat ruler of this area. There was no law, no Elective Council, no Ministry responsible to the people, no taxes, and no Courts in the Tribal Area. The people thereof were divided into small clans with their own heads. They followed their oven customs, traditions, beliefs, and usages which in several respects differed with different clans. Disputes between one clan and the other or between one individual or another were either decided by exchange of shots or, if they happened to be civilized beings, by reference to the Council of Elders, commonly known as jirga. The membership of the Council of Elders was, however, not based on any set rules or procedure, but changed with every dispute according to the Wishes of the parties or on the whims of the authorities appointed by the British Govern ment.
In August, 1947, India attained freedom from the British Rule and was divided into two distinct independent countries known as Pakistan and India. Under the British Parliament enact ment styled as Indian Independence Act of 1947, Pakistan consisted of part of Bengal, Assam, and Punjab, which were also par titioned, as well as the provinces of Sind and North=West Frontier. The latter acceded to Pakistan by a Referendum. According to the geographical situation of the different pro vinces which formed Pakistan it perforce had to have two wings hundred of miles separated from each other. One wing was called the East Bengal or East Pakistan and the other as West Pakistan. In the latter wing. apart from the Chief Commissioner's Province of Baluchistan, we had the Governors' Provinces of Sind, Punjab, and North‑West Frontier Province. Certain Princely States also acceded to Pakistan and' were included in the second wing. So far as "Tribal Areas" were concerned, they were altogether ‑nine in the North‑West Frontier Province. There were other Tribal Areas also which were in the other provinces of West Pakistan, but we are not concerned with them in this case. The provision with regard to the " Tribal Areas" in, the Indian Independence Act of 1947 was enshrined in section 7 subsection (c), which was to the following effect :‑
" There lapse also any treaties or agreements in force at the date of the passing of this Act between His Majesty and any persons having authority in the tribal areas, any obligations of His Majesty existing at that date to any such persons or with respect to the tribal areas, and all powers, rights,. authority or jurisdiction exercisable at that date by His Majesty in or in relation to the tribal areas by treaty, grant, usage, sufferance of otherwise."
The aforementioned "Tribal Areas" then came under the Sovereignty of the Pakistan Government presumably in lieu of .the agreements and the treaties. In spite of the independence, in matters relating to the structure or the principal organs of the Government and the determination of their functions, we continued to be governed by the Government of India Act, 1935, with amendments here and there from time to time made. The position of the administration of the "Tribal Areas" remained almost the sane except that the Governor‑General ceased to be an autocrat ruler of that area. In this respect too, he was to be aided and advised by a Council of Ministers. In October 1955, by the Establishment of West Pakistan Act, the Governors' Provinces of the Punjab, North‑West Frontier and Sind, the Chief Commissioner's Province of Baluchistan and the Capital of the Federation, the States of Bahawalpur and Khairpur, Baluchistan States Union as well as the tribal areas of Baluchistan, the Punjab and the North‑West Frontier Province arid the States of Amb, Chitral, Dir and Swat were incorporated into one single unit, thereafter to be known as the Province of West Pakistan. Tire " Tribal Area" was given a special name of "Special territories". By section 2, subsection (3) of this Act, however, it was provided that nothing in this Act shall authorise any change in the internal 'administration of the " Trihal Areas",
The executive authority of the province of West Pakistan was to extend to this area, but no Act of the Federal Legislature or of the Provincial Legislature was to be applied to it or to any part thereof, unless the Governor with the previous approval of the Governor‑General so directed. The Governor was also authorised to make regulations with the approval of the Governor‑General for the peace and good government of this special area or any part thereof. The Governor‑General was also authorised to give such directions to the Governor as he deemed necessary. As it was not possible in such a short time to have a General Election in order to compose a Provincial Legislature an ad interim arrange ment was made to this effect that West Pakistan would have an interim Provincial Legislature which was to be composed of 310 members as provided in the Second Schedule to the Act. An important features of the Act was that the " tribal areas" or "special areas" were also asked to send their own representatives to such interim Provincial Legislature for the first time in their history. The amusing feature however, of the Act is that while the representatives of the special areas have a hand in framing the laws for the rest of West Pakistan they have no voice in applying them to the areas which they represent. They could have their share in the administration of the whole of the province except their own areas, where the Governor‑General exercised exclusive authority, though aided and advised by a Council of Ministers. More amusing even than that is the fact that any person even though he does not belong to the "tribal" or "special area", may be elected from such area, although if the election is honest, fair and free, it should be quite an impossible thing to conceive, The representatives of the "Tribal Areas", however, were not to be elected by the people living in there, but by a Council of Elders called Jirga, which is not at all a well defined or statutory body. As a matte‑ of fact, the membership of this body changes with the whims of the officer having the authority in the "Tribal Areas" or with the exigencies of each case.
"Tribal Areas" adjoining Hazara and Mardan Districts with which we are concerned in this case, were to send six members according to Schedule II to the Establishment of West Pakistan Act, 1955. Some sort of election then took place in which Qaisar Khan Saadullah Khan, Sardar Bahadur Khan, who was then a Minister in West Pakistan Government, Malik Gajju Khan, Muhammad Ayub Khan, and Rustum Khan were declared elected. The validity of this election was questioned, whereupon a Tribunal was appointed by the Governor West Pakistan consist ing of Mr. Justice Akhlaque Husain, a Judge of West Pakistan High Court, Mr. Abdul Hamid and Arbab Ahmad Ali Jan. They submitted their Report which was published in the Gazette (Extraordinary) of West Pakistan dated the 13th of July 1956, invalidating the election. The six seats were then declared vacant. By then, the Constitution of Islamic Republic of Pakistan had come into force. This was on the 23rd of March. 1956. By Article 221 of the Constitution, the Government of India Act 1935 and the Indian Independence Act, 1947, together with all enactments amending or supplementing those Acts, were repealed. Since the Establishment of West Pakistan Act had amended and supplemented the Government of India Act, 1935, it also stood repealed. The position of the "Tribal Areas" from the administrative point of view remained exactly the same. It was as though the provision: With regard to these areas were bodily picked up from the Establishment of West Pakistan Act and embodied into the Constitution. The Constituent Assembly of Pakistan, while enacting the Constitution, was again faced with the difficulty that it would not be possible to implement the provisions of the Constitution with regard to the formation of the Legislative Assembly of West Pakistan in the near future. It, therefore, inserted in the Constitution, Part XIII dealing with the Transitional Period. Under Article 225, clause (2) a Provincial Assembly for the Province of West Pakistan was considered as duly constituted under the provisions of the Constitution. The Legislative Assembly of the province, consisting of persons elected thereto under section 11 of the Establishment of West Pakistan Act, was to exercise the powers conferred and performed the duties imposed upon the Provincial Assembly of West Pakistan by or under the provisions of the Constitution. Under clause (3) of the same Article, a casual vacancy in the Provincial Assembly was to be filled in, in accordance with such rules as may be made in that behalf by the President. The President made such rules which were published by Notification No. F.12 (7) 56‑Con : in Gazette (Extraordinary) dated the 10th of May, 1956. According to Rule 6, the provisions of the Establish ment of West Pakistan Act, 1955, and the Rules made there under were to apply to bye‑elections held under these Rules as they applies to elections to the Interim Legislature held under the Act. In the Schedule attached to the Rules, six seats were again allotted to the "Tribal Areas" adjoinig Hazara and Mardan Districts. These Rules were subsequently amended by the Pre sident by Notification No. F. 2 (4)/57‑Ref., dated the 31st July 1957. In pursuance of these Rules, a bye‑election is claimed to have been held for the "Tribal Areas" adjoining Hazara and Mardan Districts, on the 4th of October 1956. Six persons, namely, Muhammad Ayub, Iftikhar Hussain Khan Mamdot (an absolutely stranger to the area but a Provincial Minister), Malang Khan, Rustam Khan, Muhammad Zarin Khan, and Muhammad Ali Shah were declared and notified as having been elected from the aforementioned area. Ajoon Khan, son of Azim Khan, of village Bhade, on the said " Tribal Area" has made an application under Article 170 of the Constitution of Islamic Republic of Pakistan, for the issue of a writ of quo warranto or certiorari or any other suitable writ which may be deemed fit and proper by this Court against the aforementioned six persons, restraining them from assuming and performing the functions of their public office as duly elected members of the Interim Legislative Assembly of West Pakistan, and ordering the Government of West Pakistan, the Central Government and the District and Sessions Judge, Hazara, to produce all record material to the bye‑election, including the lists of votes, rules and instructions etc.
A preliminary objection is raised that the jurisdiction of this Court to question the election under Article 170 of the Constitution of Islamic Republic of Pakistan is completely barred. It has already been mentioned that by the Rules framed by the President, the provisions of the Establishment of West Pakistan Act applied to the bye-elections. Under section 12 of that Act if any doubt or dispute arose as to whether a person has or has not been validly elected to the Legislative Assembly con stituted under section 11 of the Act, it shall be raised by a petition to the Governor of West Pakistan, who will then appoint a Tribunal, consisting of a Chairman, who shall be or has been a Judge of a High Court, and of two other persons who shall be or have been. District and Sessions Judges in Pakistan. Under subsection (6y of section 12, it is specifically mentioned that the validity of an election under section 11 of this Act shall not be questioned in any Court. The same provision exist with regard to the "Tribal Areas" in the Rules framed by the President, although with regard to the rest of the area of West Pakistan a change has been brought about in the com position of the Tribunal. Rule 18 specifically lays down that validity of a, bye‑election shall not be called in question except in the manner provided by these Rules, viz. by a petition made to the Governor within thirty days of the publication of the result of the election in the official Gazette. Since these rules are framed under the Constitutional provisions, they have become part and parcel of the Constitution and have exactly the same force. This is what had been held in Mr. Zain Noorani's case reported as Zain Noorani v. Secretary of the National Assembly of ‑Pakistan (P L D 1957 S C (Pak). 46). The observation is made in the following terms :‑
"Article 143 not being applicable to the transitional period the framers of the Constitution instead of making a provision for elections during that period left it to the President to frame rules, not only in respect of the vacancies in the National Assembly but also with regard to the vacancies in the Provincial Assemblies. Article 223 (2) and 225 (3) which gave the President these powers did not impose any limitations. That being so, Rule 5 which was impugned as unconstitutional was a provision of the Constitution applicable during the transitional period, and the ordinary limitations imposed on delegated legislation did not apply. These were not rules framed under the powers conferred by a legislature, but were rules which the framers of the Constitution intended to be a part of the Constitution during the interim. period."
Section 12 of the Establishment of West Pakistan Act as well as Rule 18, would, thus, become the part of the constitutional law just as any other provision of that law is. Since these two provi sions are special provisions, they would in accordance with the well established principle of law operate as proviso to and take precedence over the general provisions. Article 170 of the Constitution being a general provision shall have to be read subject to the aforementioned two sections. If this is done, then the jurisdiction of this Court to issue high prerogative writs is completely taken away in cases in which "any doubt or dispute arises as to whether a person has or has not been validly elected." The right to question the validity of an election in a particular way has been created by the express terms of the Constitution itself and the Constitution has then in similar express terms blocked all other avenues to achieve that purpose. The necessary result of these two provisions of the Constitution are that the jurisdiction vested in the High Court under article 170 in so far as the validity of the election is concerned, is taken away, if, however, an election itself is challenged as not having taken place', then there is neither a remedy provided in the Constitution, nor is there any bar for the High Court to attract to itself the jurisdic tion vested in it under the said Article. The taking place of the election and its validity should not be confused with each other.
In the case in hand. the petitioner has admitted in para. 1 of his petition that a bye‑election did take place on the 4th of October, 1956, but he disputed the validity of this bye‑election on the following grounds
(1) That bogus lists were prepared by Deputy Commissioner, Hazara, in collusion with the Provincial and Central Govern ments, which included the tenants, private servants, and retainers of Muhammad Ayub Khan (Respondent No. 4), a great number of whom were alleged to be minors.
(2) That Alai area with a population of 1/10th of the entire constituency was given a dominant majority of votes out of all proportions to its population.
(3) That three Ministers of the Provincial Government, includ ing Sardar Abdur Rashid, were present throughout the polling in order to coerce the voters.
(4) That election was held in defiance of the rules and the recommendations of the Election Tribunal which had set aside the first election.
(5) That no notice of the bye‑election was given to Koistan Area covering almost half the area and the population of the entire constituency
(6) The vast Gadoon tribal area was fraudulently and by design deprived of representation to get Iftikhar Hussain Khan of Mamdot (Respondent No. 5) elected, because he was a Minister in the Provincial Assembly without being its member, and the statutory period of six months was about to .expire. It was further alleged that for the same purpose, the preparation of the lists of voters and the election itself were taken in hand with desperate hurry.
Apart from that, an elaborate and thorough inquiry is needed for the final determination of the questions raised in the petition. For example, it will require the examination of, several witnesses to prove that the persons who were included in he lists and the Council of Elders were not elders at all, but tenants, private servants and retainers of respondent No. 4, or some of them were minors. Similarly, in order to prove that the tribal elders of certain areas were fraudulently excluded from recording their polls, numerous persons shall have to be called into the witness‑box, The law is that if election on the face of it is regular, as is the case here, then evidence is not admissible to control or impeach it. That is the function of an election Tribunal. The writ jurisdiction of the High Court is limited to the inspection of the record before it. The only question determined is that of jurisdiction and the regularity of the proceedings. The Court proceeds on the assumption that the entire record of the proceedings challenged is before it and on that record, determine whether the Returning office had jurisdiction, or having it, abused it, or acting within his jurisdiction, had failed to proceed according to the essential requirements of law.
Our attention has been invited to Sadiq Wahab v. Sayed Iftikhar Hussain and others reported in (P L D 1956 Kar. 371). The head note of this authority where it mentions "Constitution of Pakistan Article 170" appears to be misleading, because the case was decided, and it related to the period prior to the Constitution came into force. It was a case under Section 223‑A of the Government of India Act. This case in terms seems to have no relevancy to the facts of the case in hand. The learned Judge, it appears, while expressing their views in three sentences that sub‑section (6) of section 12 of the Establishment of West Pakistan Act, 1955, was not a bar to the writ jurisdiction of the High Court, because it was a jurisdic tion conferred by the Constitution and it is the Constitution alone which can modify or restrict it, do not seem to have gone deep into the question as they were dismissing the petition on other grounds. It appears that it was not pointed out to their Lordships that the Establishment of West Pakistan Act, which amended the Government of India Act, 1935, in certain respects was itself a constitutional measure. So, if it made the special provi sions with respect to the election petitions which had the powers of impairing section 223‑A of the Government of India Act, then it was done by the Constitution itself, and not by any Act of the Legislature.
Another case cited at the bar is Muhammad Akbar v. Dr. Khan Sahib (P L D 1957 Kar. 387). It seems that all the observations made in the judgment on which the learned counsel for the petitioner relies were in the nature of obiter dicta. But, even then with all respect to the learned Judges, in my humble view, they do not lay down a sound law. The petition in that case seems to have been under the Constituent Assembly proceedings and privileges Act of 1955. Section 8 of this Act dealt with the filling of casual vacancies. Under Section 9, it was provided that if any doubt or dispute arose as to whether a person has or has not been validly elected or was qualified for or disqualified from sitting and voting in the Assembly, the question shall be referred to the Speaker who shall appoint a Tribunal in accordance with Subsection (2) of that section. Their Lordships held that Article 146 of the Constitution which lays down that no election to the National Assembly or Provincial Assembly shall be called in question except by an election petition presented to such authority and in such manner as may be provided by an Act of Parliament, did not apply to elections, to the Interim National or provincial Assemblies. They, however, added an obiter dictum to this finding by saying that even if it were applicable, it will be read subject to the provisions of Article 170. They came to this conclusion by drawing an analogy from the Supreme Court's judgment wherein they had held that Article 146 was to be read subject to Article 160 of the Constitution, which is to the following effect :‑
Notwithstanding anything in this part the Supreme Court may grant special leave to appeal from any judgment, decree, order or sentence of any Court or tribunal in Pakistan, other than a Court or tribunal constituted by or under any law relating to the Armed Forces."
It is difficult to understand how does the finding arrived at by the learned Judges flow from the judgment of their Lordships of the Supreme Court. It is a well settled principle of law about which there cannot be two opinions, that an appeal is not a fresh proceeding but is only a continuation of the original proceeding and a stage in those proceedings itself. The orders passed by the Appellate Court or the orders in those proceedings and the appellate judgment stands in the place of the original judgment for all legal purposes. The learned Judges have not cited the authority of the Supreme Court in their judgment, but it appears, that they were referring to the case of Muhammad Saeed and four others v. Election petition Tribunal o'' West Pakistan and others reported in (P L D 1957 S C (Pak) 91). In this case, their Lordships were pleased to hold that Article 146 of the Constitution of Pakistan had no bearing on the question of the Supreme Court's jurisdiction under Article 160 to interfere on appeal by special leave with the order of an Election Tribunal. Their Lordships further observed that the jurisdiction of the Supreme Court under Article 160 is in the nature of supervisory jurisdiction. The proceedings before the Supreme Court under Article 160 of the Constitution were in continuation of the election petition and not separate from it, and that also can be gleaned out of the following remarks of their Lordships of the Supreme Court :‑
"If the law invests the Governor, which it does not, with discretionary powers to interfere with the Report of the Election Tribunal, the Election Petitions Tribunal and the Governor together constitute a tribunal for the purposes of Article 160 of the Constitution.
I have, however, not been able to find in this judgment wherein their Lordships of the Supreme Court had said that Article 146 will be subject to Article 160.
The learned Judges of the Karachi Bench then took notice of the fact that unlike the Establishment of West Pakistan Act, and the Rules framed by the President under Article 225, subsection (3), there were no provisions in section 9 of the Constituent Assembly Proceedings and Privileges Act, 1955, that the findings of the Tribunal cannot be called in question in any Court. If their Lordships had stopped at that, it would have been all right. But they proceeded to lay down that even if it were so, this would not affect the powers conferred on the High Court by Article 170 of the Constitution. In support of their view, they quoted the following passage from an. Indian case Raj Krusma Bose v. Binod Kanungo and others (A I R 1954 S C 202).
"It is sufficient to say that the powers conferred on us by Article 136 of the Constitution and on the High Courts under Article 226 cannot be taken away are whittled down by the legislature."
In applying this quotation to the case before them, their Lordships seem to have failed to observe that the Constituent Assembly Proceedings and Privileges Act, 1955, was a constitu tional, measure, and not an Act of the Legislature. As has been put by my learned brother Sheikh Abdul Hamid, J., it ,is undoub tedly true that the provisions of the Constitution cannot in any way be impaired by an Act of the legislature.
I have not been able to appreciate the distinction drawn by the learned Judges between a voter or a candidate seeking the determination of doubt or dispute with regard to the validity of the election of a certain person and the one who is neither a voter nor a candidate. Even, the Constitution, the Establishment of West Pakistan Act, and the rules framed by the President do not say that only those persons can challenge the validity of the election of a certain person who are either voters or the candidates. In my opinion, whenever a dispute or doubt arise; with regard to the validity of the election of a certain person then every citizen of Pakistan, whether he is a voter or a candidate to or not, can move the relevant authority for the appointment of the Election Tribunal, irrespective of the fact whether he is a voter or a candidate or not. The jurisdiction of the Courts i taken away for the determination of the above question, and not the determination of the above question only at the instance of a voter or a candidate.
The result of the above discussion is that the preliminary object raised by the learned counsel for the respondents must prevail and this petition dismissed with costs. I agree that the pleader's fee should be Rs. 500.
:‑ It is abundantly clear, that the rules framed under Article 225 (3) of the Constitution, being special provisions, constitute an exception to the general provisions under Article 170, and as such we cannot but hold, that the writ jurisdiction conferred upon this Court b, Article 170, is taken away by another constitutional provision of a special nature, in regard to the matter of bye‑elections during the transitional period. The preliminary objection, therefore must prevail and the petition dismissed.
I don't feel inclined to go into the hypothetical question, whether or not the gazette notification wherein the names of the respondents had been notified as duly elected Members of the Provincial Assembly, would have been a sufficient answer to a writ of quo‑warranto, if it had been issued, because it is not necessary to determine this question for the purpose of the present petition, which fails on the preliminary objection.
A. H. Petition dismissed.
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